Temporary Improvement Does Not Signify Ability To Work

By Bonny Rafel

Recipients of long term disability benefits often experience improvement in their condition when they stop working. For example, a construction worker who experiences severe back pain may experience a health improvement when he is not engaged in intensive physical activity on a daily basis. When you have been approved for long term disability, the benefits administrator will continue to request updates from your physician regarding your treatment progress. If there is any indication of a health improvement while on long term disability, the administrator may request an independent medical evaluation (“IME”), a functional capacity evaluation (“FCE”), or even hire a third-party vendor to follow and video your public activities. Your medical improvement could potentially be used against you to terminate your benefits.

A recent case from Michigan provides a great window into how this process can work. In Gillespie v. Liberty Life Assurance Co. of Boston, the plaintiff was a former bank teller who underwent surgery to relieve persistent back and neck pain. The plaintiff briefly attempted to return to work following her surgery. However, this exacerbated her pain symptoms. After she stopped working, her condition improved, she was able to see her doctors less frequently, and to reduce the amount of pain medication she took. However, this improvement triggered a heightened review by Liberty. Her treating physicians reported to Liberty that she was still unable to work, but Liberty, unsatisfied, requested an independent medical examination (IME). The IME doctor reported that she could return to a sedentary position. Liberty terminated her benefits in a month after the IME. Despite appealing, her denial was upheld and she filed suit against Liberty.

Thankfully, the court found that Liberty’s decision was improper on a number of grounds. Liberty over-relied on their own doctors and consultants, as there is nothing in the record to indicate that Gillespie’s treating physicians’ opinions were considered. Most importantly, Liberty failed to address the fact that work exacerbated Gillespie’s pain symptoms and did not consider how a return to work again would not end in the same result.

The Gillespie case demonstrates two key points. First, just because your condition has improved does not mean you are able to return to work. Therefore, you should be clear about this fact when speaking to your treating physician. You should absolutely tell your doctor that your condition has improved. However, you should also be sure to include the fact that your improvement is due to not working. Second, Gillespie demonstrates the importance having effective counsel to monitor your benefits after approval. At Bonny G. Rafel, LLC, we are experienced in this monitoring process. Should you be concerned that your benefits are at risk, do not hesitate to contact us for a consultation.